United States v. Sanders , 392 F. App'x 145 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4822
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DOMINIQUE TRACY SANDERS,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00007-LHT-1)
Submitted: July 15, 2010 Decided: August 20, 2010
Before TRAXLER, Chief Judge, and WILKINSON and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Matthew R. Segal,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Edward R. Ryan, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dominique Tracy Sanders pled guilty pursuant to a plea
agreement to one count of possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006), and
one count of possession and use of a firearm during the
commission of a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1) (2006). Sanders was sentenced to
sixty-three months for his narcotics conviction, and sixty
months for his weapons conviction, the latter term to run
consecutive to the former term for a total of 123 months. On
appeal, this court affirmed Sanders’ convictions and sentence on
the weapons conviction, but vacated Sanders’ sentence on the
narcotics conviction, in accordance with United States v.
Carter, 564 F.3d 325 (4th Cir. 2009), because the district court
failed to provide an explanation for Sanders’ sixty-three-month
sentence. On remand, the district court re-imposed the
sixty-three-month sentence on Sanders’ narcotics conviction.
Sanders again appeals, arguing that the district court’s failure
to explicitly respond to his argument regarding the
crack-to-powder cocaine sentencing disparity amounts to
reversible error. We affirm the district court’s judgment.
This court reviews a sentence for reasonableness under
an abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). This review requires consideration of
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both the procedural and substantive reasonableness of a
sentence. Id. The court must assess whether the district court
properly calculated the advisory guidelines range, considered
the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-50; see
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n
individualized explanation must accompany every sentence.”)
(emphasis in original); Carter, 564 F.3d at 330 (holding that
the “individualized assessment . . . must provide a rationale
tailored to the particular case at hand and [be] adequate to
permit meaningful appellate review”) (internal quotation marks
and citation omitted). “Although a court need not necessarily
issue a comprehensive, detailed opinion, the court’s explanation
must nonetheless be sufficient ‘to satisfy the appellate court
that [the district court] has considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal
decisionmaking authority.’” United States v. Boulware, 604 F.3d
832, 837 (4th Cir. 2010) (quoting Rita v. United States, 551
U.S. 338, 356 (2007)).
The district court’s explanation "need not be
elaborate or lengthy[,]" however. Carter, 564 F.3d at 330.
“That is especially true where, as here, the sentence is inside
the advisory guidelines range.” United States v. Johnson,
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587 F.3d 625, 639 (4th Cir. 2009), cert. denied sub nom. Martin
v. United States, 130 S. Ct. 2128 (2010). “Gall was quite
explicit that district courts should provide more significant
justifications for major departures than for minor ones. But
when a district court does not depart or vary at all, it may
provide a less extensive, while still individualized,
explanation.” Id. (internal citations, quotation marks and
brackets omitted). “This is because guidelines sentences
themselves are in many ways tailored to the individual and
reflect approximately two decades of close attention to federal
sentencing policy.” Id. (internal quotation marks and citation
omitted).
If there is no procedural error, this court may then
review the substantive reasonableness of the sentence, “tak[ing]
into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.” United
States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal
quotation marks and citation omitted). We presume that a
sentence within a properly calculated Guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
We have determined that Sanders preserved his
challenge to the imposition of the district court’s sentence by
arguing for a sentence different than the one imposed by the
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district court. Lynn, 592 F.3d at 578 (“By drawing arguments
from § 3553 for a sentence different than the one ultimately
imposed, an aggrieved party sufficiently alerts the district
court of its responsibility to render an individualized
explanation addressing those arguments, and thus preserves its
claim.”). Accordingly, we review the district court’s sentence
on remand for an abuse of discretion. Id. at 581, 583-84. If
the district court procedurally erred and, thus, abused its
discretion, we must reverse unless the error is harmless. Id.
at 581, 585.
We hold that the district court’s reasoning for
Sanders’ sixty-three-month sentence was sufficiently
individualized and reflected a considered rationale. Although
the district court did not explicitly state that it was
rejecting Sanders’ policy-based disparity argument, the district
court did make clear why it believed a sixty-three-month
sentence on Sanders’ narcotics conviction was appropriate under
the § 3553(a) factors. We conclude that the district court’s
analysis of the § 3553(a) factors allows us to conduct
“meaningful appellate review” and promote[s] the perception of
fair sentencing.” Gall, 552 U.S. at 50; see United States v.
Simmons, 587 F.3d 348, 362 (6th Cir. 2009) (rejecting
defendant’s argument that the district court’s failure to
explicitly reject his disparity argument amounted to reversible
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error because the argument was legal rather than factual,
“defendants convicted for possession of crack have routinely
made the same underlying substantive claim, and therefore the
sentencing judge was no doubt familiar with this line of
reasoning[,]” the district court recognized its discretion in
rendering an appropriate sentence, but “conclud[ed] with respect
to this individual defendant that sentencing disparities were
less likely to result from a sentence within the Guidelines
range”), cert. denied, 130 S. Ct. 2116 (2010). Cf. Lynn, 592
F.3d at 584-85 (finding procedural sentencing error where there
was no indication that the district court “considered the
defendant’s nonfrivolous [and personalized] arguments prior to
sentencing him” and stated only that it found Lynn’s sentence to
be “’fair and appropriate and . . . consistent with the
requirements of [§ 3553(a)]’” before imposing Lynn’s sentence);
United States v. Sevilla, 541 F.3d 226, 232 (3rd Cir. 2008)
(recognizing that “a rote statement of the § 3553(a) factors”
will not suffice to support a defendant’s sentence if the
defendant raises a “ground of recognized legal merit (provided
it has a factual basis) and the court fails to address it”)
(internal quotation marks and citation omitted).
Because Sanders has not rebutted the presumption of
reasonableness that this court applies to his within-Guidelines
range sentence, see Allen, 491 F.3d at 193, we affirm the
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district court’s judgment. * We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
*
On July 16, 2010, the Seventh Circuit published its
opinion in United States v. Arberry, __ F.3d __, 2010 WL 2788548(7th Cir. July 16, 2010), holding that the district court’s
failure to address the defendant’s nonfrivolous argument
regarding application of a one-to-one sentencing ratio for crack
and powder cocaine required vacatur of the defendant’s sentence.
In a footnote, the Seventh Circuit stated its opinion was
consistent with a ruling from this Court in United States v.
Clark, No. 09-4256, 2010 WL 2464979 (4th Cir. June 17, 2010).
However, Clark was remanded for resentencing because the
district court failed “to explain its individualized assessment
of the applicable [18 U.S.C. § 3553(a) (West 2000 & Supp. 2009)]
factors,” “to articulate why it rejected Clark’s argument for a
below guidelines sentence,” or “address Clark’s sentencing
disparity argument.” Clark, at *2. Ultimately, this Court
remanded Clark for resentencing because it was “simply unable to
gauge whether the district court considered the parties’
arguments and the applicable sentencing factors and had a
reasoned basis for its decision.” Id. Here, the district court
on remand did explain its individualized assessment of the
applicable § 3553(a) factors and provided a reasoned basis of
its decision to sentence Sanders within the Guidelines range.
Indeed, the district court recognized its discretion in
rendering an appropriate sentence and found that among
defendants with similar records, who were found guilty of
similar conduct, the sentence did not result in unwarranted
sentence disparity. Accordingly, despite the district court’s
failure to expressly address the defendant’s disparity argument,
we are not persuaded by the Seventh Circuit’s decision in
Arberry to reach a different outcome.
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